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Does Political Speech Trump a City Curfew?

Democracy is a 24-Hour Enterprise, Manchester Occupiers Explain in Court

The spirit of the Occupy movement reappeared this morning in Hillsborough County Superior Court, where three activists arrested on criminal trespass charges October 19, 2011 took their case before a jury.

That day, the fifth in which occupiers were encamped in Manchester parks to show their displeasure with the imbalance of power in American economic and political life, Manchester police made it clear the city would no longer allow them to violate the curfew which bans public presence in city parks between the hours of 11 pm and 7 am. As Captain Robert Cunha explained then, and repeated in court today, the occupiers would be warned to vacate the park at 11 pm. If they did not leave, they would be issued a citation for violating the curfew. If they still refused to leave, they would be arrested for trespassing.

Today’s defendants – Matthew Richards, Beth Grunewald, and Elizabeth Edwards – were among those arrested for trespassing. Today they had their day in court. Or rather, their first day in Superior Court.

The three had already been tried in District Court, where they were found guilty. Unlike most of the others tried that day, the three were eligible to appeal for a jury trial because their arrest on misdemeanor charges meant they could potentially be subject to time in jail. With the able leadership of Barbara Keshen of the NH Civil Liberties Union, they tried to tell the jury their actions were warranted by the extreme problems facing the country and constitutionally protected.

I was in the courtroom as a witness for the defense. Unfortunately, that meant I was “sequestered” for the first part of the trial. No this was not like the current “sequester” of funds by the US Congress. I did not have to give up a percentage of my income. It meant I sat out in the hall gabbing with Will Hopkins and Matt Lawrence until we were called as witnesses after lunch. And that meant I missed the opening arguments by the prosecutor and the defense.

As I understand the case, the prosecution wants to convince the jury that the occupiers knew their presence in the park after 11 pm was illegal, and that they had ample alternative means to express their political views, for example by being in the park between 7 am and 11 pm. The defense argued that the rights to speak, assemble, and petition the government for redress of grievances under the NH Constitution is a higher order legal principle than the city’s curfew ordinance.

As an Occupy participant who observed the police actions which ended the Veterans Park occupation 17 months ago, I was there to help the jury understand the background of the Occupy movement, the principles of active nonviolence, and the role that civil disobedience can play in challenging unjust laws. Unfortunately, the judge sustained objections to many of the questions Barbara asked me. Will and Matt, both of whom left the park with citations, were similarly constrained.

But the defendants, who were all called as witnesses, were given greater latitude and delivered eloquent explanations to an attentive, mostly female jury.

Matt Richards was first. The 21-year-old Manchester native was allowed to describe the Occupy General Assemblies, at which participants practiced horizontal democracy, “where everyone can speak their mind.”

“I shouldn’t have to leave when I’m protesting in a public park,” he said. “My right to speech and assembly has more weight than a curfew.”

Matt said he fled morally obligated to remain in the park, despite the curfew and the police order to leave. He would not want his actions to imply that protests should take place “only when it is convenient to those in power.”

Occupy is about endurance. It is about not giving up when injustice is higher then the clouds and you can barely afford a step ladder.

Matt teared up as he recalled meeting a homeless mother of three in one of the parks. She was carrying a sign that said, “I’m homeless. Do I have a voice?” Matt explained he, too, knows what it feels like to be treated as a trespasser in his own city. But he said he also knows miracles can happen when people reclaim their voices and speak out for justice.

“Occupy is about endurance,” he told the jury. “It is about not giving up when injustice is higher then the clouds and you can barely afford a step ladder.”

“The amount of money someone has should not influence how much power they have,” Beth Grunewald said. The 26-year-old Merrimack native said the occupiers showed by example how to create a consensus democracy that is fair to everyone and takes care of those who need help.

Refuting the prosecutor’s implications that the occupiers could have made their point without violating the city’s curfew, she said, “Democracy is not a 7 am to 11 pm job.” By building community, sharing meals, and figuring out how to live together, the occupiers were demonstrating that “another world is possible.”

Harkening back to civil rights activists arrested and brutalized for being in spaces the law told them they had no right to occupy, she said, “if it takes me staying in a park 24 hours a day, I will stay there.”

The final speaker was Elizabeth Edwards, a 24-year-old Manchester resident who said she joined the Occupy movement because she didn’t like some of the messages coming out of Occupy Wall Street and she wanted to keep an eye on what was developing here. But she soon found out, she said, that she could be part of a community and engage in dialogue, even with people who might have some different ideas. “Occupy was about proving that we can create this peaceful camaraderie now,” she said.

Her intent is to create solutions to social problems based entirely on voluntary consent, without government or coercion. “We could do it with each other right here,” Elizabeth told the jury.

The demonstrations in Veterans and Victory Parks in Manchester was part of a national movement based on occupation of public space to show the “long haul” nature of what is required to bring about change, she told the jury in response to aggressive questioning from the prosecutor. “Nothing else is working,” she said.

Elizabeth also made it clear it was her intent to put the issue before a jury, not a judge or panel of judges. Her argument: “In a public park I absolutely have the right of freedom of speech and assembly.”

“Sometimes,” she said, “you have to back down because the system is so much bigger than you are.” But sometimes, she concluded, you have to stand up and do what’s right even if you don’t know what the consequences will be.

The trial continues in the morning, presumably with closing arguments and jury deliberation.

POST-TRIAL NOTE: The jury deliberated for only an hour before finding the defendants guilty. The were apparently unwilling to see the case as a legitimate conflict between the constitution and the municipal curfew ordinance. Elizabeth, Beth, and Matt were sentenced to community service. The convictions of the larger group for violating the curfew will be appealed to the NH Supreme Court. One of the questions: what is the meaning of the word “inviolable” in Article 22 of the NH Bill of Rights?

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